Citation Nr: 9935759
Decision Date: 12/23/99 Archive Date: 12/30/99
DOCKET NO. 98-09 639 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for chronic obstructive
lung disease (COPD).
2. Entitlement to service connection for asthma/bronchitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Edward Walls, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1969 to
November 1971. His appeal comes before the Board of
Veterans' Appeals (Board) from a November 1997 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio.
FINDINGS OF FACT
1. The veteran has not submitted competent medical evidence
that COPD currently diagnosed is related to his period of
active service.
2. The veteran has not submitted competent medical evidence
that currently-diagnosed asthma/bronchitis is related to his
period of active service.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for COPD
is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The claim of entitlement to service connection for
asthma/bronchitis is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that his COPD and asthma/bronchitis
began while he was in service, and his symptoms have
continued and worsened to the present day. At a September
1998 personal hearing, he testified that he used over-the-
counter medications for his respiratory conditions during
service, and that he began seeking private medical assistance
for respiratory problems soon after his period of active
service. The issues before the Board are whether the veteran
is entitled to service connection for COPD and
asthma/bronchitis.
A veteran who submits a claim for benefits to the VA shall
have the burden of offering sufficient evidence to justify a
belief by a fair and impartial individual that the claim is
well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In
the absence of evidence of a well-grounded claim, there is no
duty to assist the veteran in developing the facts pertinent
to his claim, and the claim must fail. Epps v. Gober, 126
F.3d 1464, 1467-68 (Fed. Cir. 1997).
The veteran must demonstrate three elements to establish that
a claim is well grounded. First, the veteran must present
medical evidence of a current disability. Second, the
veteran must produce medical or, in some instances, lay
evidence of an in-service incurrence or aggravation of a
disease or injury. Finally, the veteran must offer medical
evidence of a nexus between the claimed in-service disease or
injury and the current disability. Epps, 126 F.3d at 1468-
69.
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Certain chronic disabilities, such as bronchiectasis, are
presumed to have been incurred in service if manifest to a
compensable degree within one year of discharge from service.
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
A veteran may also establish a well-grounded claim for
service connection under the chronicity provision of
38 C.F.R. § 3.303(b), which is applicable where evidence,
regardless of its date, shows that a veteran had a chronic
condition in service or during an applicable presumption
period, and that the same condition currently exists. Such
evidence must be medical unless the condition at issue is a
type as to which, under case law, lay observation is
considered competent to demonstrate its existence. If the
chronicity provision is not applicable, a claim still may be
well grounded pursuant to the same regulation if the evidence
shows that the condition was observed during service or any
applicable presumption period and continuity of
symptomatology was demonstrated thereafter, and includes
competent evidence relating the current condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98
(1997).
The veteran's service medical records reflect that in March
1969, he sought emergency treatment, and an upper respiratory
infection (URI) was diagnosed. The veteran was apparently
hospitalized for approximately eight days. The veteran was
treated for bronchitis in April 1969, and continued to seek
treatment for a sore throat in May, June, and July 1969. Hay
fever was diagnosed in June 1969. The veteran was again
treated for respiratory complaints in July 1970. No
diagnosis was assigned at that time. In November 1970, he
complained of chest congestion and he had a cough. The
service medical records are thereafter devoid of complaint
of, diagnosis of, or treatment for any respiratory disorder.
However, military separation examination in November 1971
reflects that the lungs and chest were normal at that time.
There was no diagnosis of a respiratory disorder on
examination or by history.
Post-service VA examination conducted in April 1975 disclosed
no complaints of, history of, findings of, or diagnosis of
any respiratory disorder. Radiologic examination of the
chest disclosed no abnormality. There was no diagnosis of
any chronic or acute respiratory disorder on examination or
by history.
Post-service private medial records dated from 1973 through
1986 disclose occasional episodes of treatment for
respiratory complaints. In June 1973, the veteran sought
treatment for complaints of congestion, and hay fever was
diagnosed. In 1975, the veteran sought treatment for a sore
throat, and tonsillitis was diagnosed. In 1977, the veteran
was treated for URI. In 1978, the veteran was treated for a
red, swollen throat, among other complaints, including back
pain. In 1981, the veteran complained of shortness of breath
and a history of hay fever. November 1982, the veteran
sought medical care for increasing sleepiness over the past
year and a half, periods of instantly falling asleep, very
loud snoring, and frequent awakenings.
Private medical records dated in January 1987 disclose that
the veteran had acute and chronic bronchitis. A pulmonary
interpretation report disclosed a moderate obstructive lung
defect. Private medical records dated in 1987 disclose that
sleep apnea was diagnosed, and that a trial of Continuous
Positive Airway Pressure (CPAP) was initiated.
In January 1990, an X-ray showed that the veteran had mild
hyperexpansion of the lungs, and the examiner suggested a
clinical evaluation for acute bronchitis. An Ohio State
University Medical Center discharge summary dated in
September 1996 reflects a diagnosis of COPD exacerbation.
In light of this medical evidence, it is apparent that the
veteran suffers from various pulmonary disorders, including
COPD and asthma/bronchitis, as well as sleep apnea with
marked oxygen desaturation.
During the veteran's September 1998 RO hearing, he contended
that while he was in service, he had problems breathing and
respiratory ailments. He reported that while he was in basic
training, he was diagnosed with upper right respiratory
infection with early stages considered to be close to the
symptoms of spinal meningitis.
Although the veteran suffers from COPD and asthma/bronchitis,
there is no competent medical evidence of a nexus between his
current pulmonary conditions and his period of active
service. The service medical records and the records of
private medical treatment proximate to service reflect that
the veteran was treated for a variety of acute and temporary
disorders, including upper respiratory disorders, seasonal
allergies, and tonsil inflammations. However, the current
medical records are devoid of any medical statements or
opinion that support the veteran's claim that respiratory
disorder treated in service or proximate thereto are in any
way related to his current respiratory disorders.
The veteran's assertions that his current respiratory
disorders are etiologically related to the respiratory
disorders diagnosed in service are insufficient to satisfy
the nexus requirement, that is, to establish a link between
the in-service disorders and a current disorder, because he
is a layperson with no medical training or expertise to
determine medical causation. Espiritu v. Derwinski, 2 Vet.
App. 492, 494-5 (1992). As the veteran has not submitted
competent medical evidence of a nexus between his COPD and
asthma/bronchitis and his period of active service, his
claims must be denied as not well grounded. Epps, 126 F.3d
at 1467-68.
The veteran does not have a current respiratory disorder
which may be presumed service-connected if manifested to the
required degree within an applicable presumptive period, so
the claims cannot be considered well-grounded based on a
presumptive basis. See 38 C.F.R. §§ 3.307, 3.309.
The Board recognizes the veteran's argument that seasonal
allergies (hay fever) treated during service is etiologically
related to a current respiratory disorder. The Board notes
that, by regulation, seasonal and other acute allergic
manifestations are to be regarded as acute diseases,
subsiding without residuals. Thus, the fact that hay fever
was treated during service does not establish that the
veteran had a chronic respiratory disorder in service, in the
absence of medical diagnosis or opinion to that effect.
Moreover the private medical notes of record regarding COPD
or asthma/bronchitis do not suggest that those disorders were
manifested during service or are linked to respiratory
disorders treated during service. See 38 C.F.R. § 3.303(b).
Although the veteran contends that he has had the current
respiratory disorders continuously since service, the medical
records, which reflect that COPD and asthma/bronchitis were
diagnosed in the 1980's, more than 10 years after the
veteran's service discharge, do not establish continuity of
symptomatology.
The Board also notes that the veteran has provided
definitions of COPD from medical literature to establish that
his current COPD may be related to the treatment of multiple
respiratory disorders during service and proximate to
service. In particular, the veteran argues that, because the
medical literature indicates that COPD develops over many
years, he had COPD in service, although it was not then
diagnosed. However, the generic medical literature which the
veteran has submitted does not pertain specifically to the
veteran, so it cannot serve to make his claim well grounded.
Medical texts and definitions which are general in nature
cannot support a claim. See Beausoleil v. Brown, 8 Vet. App.
459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523
(1996).
The Board is not aware of the existence of additional
relevant evidence that could serve to well ground the
veteran's claims. As such, there is no further duty on the
part of the VA under 38 U.S.C.A § 5103(a) to notify the
veteran of the evidence required to complete his application
for service connection for the claimed disabilities. See
McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997).
The veteran has been informed, including in a June 1999
supplemental statement of the case, that his claims are note
well-grounded, and he had been informed of the evidence which
would serve to well-ground the claims.
In the absence of any medical evidence suggesting the
plausibility of a relationship between a current respiratory
disorder and respiratory illness or injury in service, the
veteran's claims of entitlement to service connection for
COPD or asthma/bronchitis must be denied.
ORDER
Entitlement to service connection for COPD is denied.
Entitlement to service connection for asthma/bronchitis is
denied.
TRESA M. SCHLECHT
Acting Member, Board of Veterans' Appeals